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Supreme court: Warrantless cell phone searches illegal [pdf]
- bruceb 12y agoOne goes against us (Aereo), one goes for us today. The reasoning for this decision is pretty easy to understand and only takes a minute or so to read the first two pages.
- deleted 12y ago[deleted]
- lallysingh 12y agoI don't really care much about Aereo. Today's a very good day.
- trose 12y agoHonestly, Aereo had it coming. You can't just take someone else's content and stream it to other people for profit. I know it was a great service and we all enjoyed it but I'm not going to sit around and pretend what they were doing was legal. If the "victim" of their service was anything else besides the big nasty cable companies I dont think anyone would be singing their praises.
- gr3yh47 12y agothey were providing rental antennas and dvr for free over the air programming, that's a good service for many and there's no reason to think they can't do that
- tanderson11 12y agoYour comment misses the point of much of the dissent revolving around the Supreme Court's decision. Aereo may very well have secondary liability for copyright infringement enabled by its services, but that was not the question brought before the court. The question brought to the court was whether or not Aero has direct liability for copyright infringement. This direct liability is only found if Aero "volitionally" "performs" copyrighted material. The opinion of the court uses a "looks-like-cable-TV" justification for its treatment of Aero, as Scalia (dissenting) notes: >"The injury claimed is not violation of a law that says operations similar to cable TV are subject to copyright liability, but violation of §106(4) of the Copyright Act. And whatever soothing reasoning the Court uses to reach its result (“this looks like cable TV”), the consequence of its holding is that someone who implements this technology “perform[s]” under that provision. That greatly disrupts settled jurisprudence which, before today, applied the straightforward, bright-line test of volitional conduct directed at the copyrighted work." Whether or not Aero has secondary liability does not matter; the Supreme Court's vague ruling destabilizes existing jurisprudence and eliminates a concrete test in favour of the immaterial "looks-like-cable-TV" criterion. EDIT: formatting.
- nknighthb 12y agoAereo is such a specialized case about such a specialized law for a dying ecosystem that it's hard to care at all. This case is of actual relevance to people who won't be dead in the next 30 years, and will remain relevant long after.
- gr3yh47 12y agoThe loss of Aereo sucks, but this is a much heavier positive ruling. I wonder if this extends to the NSA's warrantless collection and to what extent.
- PaulHoule 12y agoNow we need a peer to peer network to watch broadcast TV...
- gr3yh47 12y agoI'm sure that will happen in the near future
- endersshadow 12y agoThis portion of the ruling would be interesting to see used: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime...Privacy comes at a cost." Roberts looked squarely into the "police efficiency" argument and shot it dead. This was a remarkably scathing opinion of law enforcement's methods w/r/t cell phones. I wonder if we'll see this used as part of the broader challenge to the NSA. The EFF was just gifted an incredible opinion to strengthen their case(s).
- ihsw 12y agoNot really. Simply put, LE agencies have always been happy to directly and unambiguously state that combating crime trumps privacy, and now they will do so without hesitation. It was only a matter of time until the issue of privacy was addressed, and now that it has come to pass then the issue will cause polarization in politics. Whether this is good or bad is up to you.
- drawkbox 12y agoIt is refreshing to see balance in security/privacy even being mentioned. Sometimes the system actually works, it may take the Supreme Court 15 years to get to it but it actually works. "Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions..." Mobile phones and computers are an extension of our brains now and peering into that is more invasive than papers and possessions of the past as they track metadata and behavior that people don't explicitely want to be recorded.
- acangiano 12y agoThis passage is just beautiful: "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."
- davidrhunt 12y agoAgreed. I also really like this passage later on: "These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."
- dan_bk 12y agoWhy would the same not apply to the Internet cables the NSA directly taps all over the World?
- moskie 12y agoPresent such a case to the Supreme Court and let's find out. :-)
- njharman 12y agoTwo reasons 1) Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government). NSA does (claim) to attempt to identify communications of US citizens it intercepts "overseas" and doesn't look at them without cause. 2) NSA breaks the law. Routinely it would appear.
- wooter 12y ago#1 is quite simply not true. Almost all US citizens I've spoken to feel strongly that we should respect others rights as we want ours to be respected. http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar... Just because its a reason they give, doesn't make it valid - but I guess thats what your #2 was addressing =)
- deleted 12y ago[deleted]
- SoftwareMaven 12y agoA great decision, IMO, and the only sane decision for e.g. traffic stops (a place where cell phone searches should never have been considered legal). It probably won't alter things appreciably for somebody who is being arrested, though. I can't imagine that warrant will be hard to get if the police have enough on you to put you in cuffs.
- bilbo0s 12y agoTo be perfectly frank... They don't even need that much at the rate most warrants are sworn out.
- joshlegs 12y agoe.g. "a confidential source" that we saw on here yesterday. in any case, it's good to see this decision. perhaps it's the beginning of the legal system recognizing that electronic data is private information and should be protected.
- sillysaurus3 12y agoWould you link to the source you're referring to?
- njharman 12y agoIt's confidential, releasing it would impact [pick one] a) an ongoing investigation b) the safety of undercover agent c) national security. But, trust us, source had good reliable info. [edit: to the totally confused. My comment is political satire. And it purposefully misidentified which "source" you were referring to for purposes of bitching about USA law enforcement.]
- sillysaurus3 12y agoNow I'm totally confused. e.g. "a confidential source" that we saw on here yesterday. That implies some confidential source was featured on HN yesterday. Linking to that post should do none of those things.
- rayiner 12y agoWow. It was 9-0 (Alito concurring). It's also not a narrowly-written opinion: > Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided. Slip. Op. at 9. It's not every day that a conservative Chief Justice writes an opinion predicated on a changing world diminishing the scope of earlier decisions.
- miked 12y ago> Alito concurring...That's very interesting language coming from conservative Chief Justice Roberts. Your implication seems to be that conservatives are the ones pushing weak privacy laws. I'll grant that many conservatives have been weak on privacy protection, which is one of the reasons that I'm a libertarian. But the primary parties arguing here for nearly unlimited cell phone search were "The Obama administration and the state of California, both of which sought to justify cell phone searches...". http://www.washingtontimes.com/news/2014/jun/25/supreme-court-bans-warrantless-cell-phone-searches/#ixzz35fFVR8Ea http://www.washingtontimes.com/news/2014/jun/25/supreme-cour... Not to mention that it was Bill Clinton who was behind the appalling push to expand no-knock raids by police for drug busts. Even for pot smokers who didn't inhale.
- rayiner 12y agoThat's not my implication at all. My point is simply that it's rare, for obvious reasons, for conservatives to invoke changes in the world as justification for, well anything.
- nathan_long 12y ago"Conservative" generally means "skeptical of change". So it depends on how you look at it. I'd call myself conservative, and I want to conserve my 4th Amendment rights as I move from carrying papers to carrying digital data. So you can say "the world has changed and now we have to protect cell phones" to say it's a progressive position, or "people still carry information and the government still can't search it without a warrant" to say it's a conservative one.
- 0003 12y ago9-0. Nice.
- 4k 12y agoWarrentless cellphone searches are reasonable if only it falls within a specific exception to Fourth Amendment's warrant requirement. See Kentucky vs King. I looked up Kentucky vs King on wiki. TL;DR warrantless searches conducted in police-created exigent circumstances [0] do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment. So, does that mean if police knocked on my door suspecting I might delete sensitive data on my phone before they get to it, are they still allowed to do warrantless search of my cell phone? [0] http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_States_law http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_... EDIT: DO not start fucking downvoting just for the heck of it. May be I didn't understand it well, does that mean I can't ask a question here?
- tokipin 12y agothat would seem to be a similar argument to "if someone denies a police officer entry to their home, that means they're suspicious and therefore there is probable cause" which isn't valid
- grecy 12y agoAnd yet we see plenty of videos on YouTube where a person is arrested for resisting arrest and nothing else...
- belovedeagle 12y agoI only read the opinion summary and the concurrence, but from the summary: > And, at least as to remote wiping, law enforcement currently has some technologies of its own for combatting the loss of evidence. And from the rest, once the officers have removed the phone from your person, there's no longer a danger of you wiping it. Of course, I don't want to suggest in the least way that officers will actually /follow/ this guideline, and that lower courts will uphold it, but there you go.
- declan 12y agoAlso the officers can presumably stick it in a $19 RF-shielded pouch to avoid a remote wipe by a confederate of the arrestee.
- deleted 12y ago[deleted]
- hisabness 12y agothe real issue is that most telcos will hand over whatever information the govs seek. even if the information is inadmissible (which i'm not sure it is), the govs would have all the info they need to put together a case.
- sramsay 12y ago> cellphones are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. Anyone else concerned that the Chief Justice of the Supreme Court of the United States appears to believe that Mars is an inhabited planet?
- dragonwriter 12y agoI don't think you understand what the word "proverbial" means, which might be worrying, were you, rather than John Roberts, the Chief Justice. There's plenty of things that bug me about John Roberts being CJ, but your complaint isn't one of them.
- nknighthb 12y agoIf I were a student at University of Nebraska-Lincoln, it'd certainly be worrying to me that an Associate Professor of English at my school doesn't understand the word "proverbial".
- sramsay 12y agoI was, um, joking.
- nknighthb 12y agoCould you point out the joke? I can't locate anything that could be interpreted as one. It would be especially odd for it to be a joke since you've been around HN long enough to know better.
- sramsay 12y agoIt was an egregious lapse in judgment. I am shutting down my computer now, and will schedule an appointment with my therapist later today.
- deleted 12y ago
- higherpurpose 12y agoI haven't read the ruling yet, but it does include the fact that "collection" of the data without "search" is also illegal - right? Otherwise it doesn't change the mass surveillance situation much, and not that it's not illegal, because the Constitution does say "seizures", too, but I just want it to be clearly said by the Supreme Court so there's no doubt or room for "secret interpretations".
- declan 12y agoDifferent area of the law. Deals with search incident to arrest. Unrelated to NSA litigation or surveillance authority.
- _nullandnull_ 12y agoThe title is misleading. It should read "Warrantless cell phones searches illegal for people police arrest".
- adventured 12y agoNo the title still works. Police can't search your cell phone without a warrant. Police that arrest you can't search your cell phone without a warrant.
- _nullandnull_ 12y agoRetort removed. No point arguing semantics with someone who doesn't know how to use a comma.
- phkahler 12y agoHow do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
- gr3yh47 12y ago"physical aspects"
- declan 12y agoYep. Also the "munitions" line became false something like 17 years ago when encryption export controls moved from State to Commerce.
- geuis 12y agoNot an attorney, of course. Those two things don't tie together I think. Encryption can't make a phone explode, so it's not a munition.
- dragonwriter 12y agoWith the recognition that the export restrictions are based on potential military application by a nation-state adversary which may require time and other hardware and software to realize and that the permission to search for weapons incident to arrest centers around immediate physical danger to the arresting officer and others from the item itself, so the two things are not concerned with even remotely the same considerations.
- phkahler 12y agoThis is the only response to my question that seems solid.
- aragot 12y ago> along with the notion that encryption algorithms are considered munitions worthy of export restrictions? Simple: The same way an agent can't open your car trunk even if it may contain one of 1. groceries or 2.war weapons.
- declan 12y agoThis is a solid decision that will curb abusive searches and help other Fourth Amendment litigation, including ongoing cases involving warrantless cell phone tracking. (That's because many of the concepts about the importance of mobile devices are true in the tracking context as well.) But it also shows how long it takes for the legal system to fix these problems. I wrote these articles over 7 years ago about how cops in San Francisco and elsewhere were searching phones a decade ago, and the practice has likely been going on for even longer: http://news.cnet.com/Police-Blotter-Cops-need-warrant-to-search-cell-phone/2100-1047_3-6187389.html http://news.cnet.com/Police-Blotter-Cops-need-warrant-to-sea... http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-phone-content/2100-1030_3-6177464.html http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-pho... This may be a lesson for HN readers trying to solve privacy problems. Option #1, enacting a new law, tends to be an exercise in futility: California rejected a fix to cell phone searches in 2011, and Congress did nothing on cell phone searches (nor has it enacted a law to fix warrantless email searches or rein in the NSA post-Snowden). Option #2, relying on the courts, may work, but it may not. It took 10 years to fix cell phone searches, and only after millions of dollars worth of concerted advocacy by EFF, ACLU, etc. And it might have gone the other way: remember the courts have blessed the erosion of Fourth Amendment protections because of the War On Some Politically Unpopular Drugs. Option #3, creating technology, works as soon as you can deploy it, and is subject to the laws of mathematics rather than whether a SCOTUS justice is a crankypants today when it comes to privacy. Of course the NSA may try to subvert your encryption/anonymizer/etc., but its attempts may fail, and, besides, intelligence agencies already subverted Congress long ago. :)
- pdkl95 12y agoOption #4, All of the above. Many of these issues are both technological problems and political problems. Neglecting either is not a particularly good strategy.
- declan 12y agoSure, if resources were unlimited. But they're not, so you have to pick and choose. You're right that option #2 can work: EFF has represented me and a dozen or so other plaintiffs in a case where we won at the Supreme Court, and the ACLU has represented me in two cases. I'd be a hypocrite if I didn't admit the possibility of winning is real. :) But if you argue for option #1, history matters: what significant pro-privacy law has Congress enacted in the last 15-20 years? (I can name plenty that have gone in the other direction.) More to the point, HN readers are more likely to be in a position to pursue option #3. We do have a few lawyers and law students here, but far more engineers, CS students, and programmers.
- sanderjd 12y agoI hope people are making it to Alito's partial concurring opinion at the bottom. He goes into more detail about the history of searches and draws a different conclusion about their rightful purpose than the "trilogy" referenced by the majority opinion. He also points out that the ruling actually puts cell phone data in a favored position compared to physical effects, and concludes that while a broad and easy to apply rule is the right decision for the court, a more nuanced set of rules enacted by legislators may be warranted. Both opinions are great and illuminating reads!
- nnnn 12y agoCan the U.S. Customs and Border Protection search them? I got my cell phone, tablet and laptop searched taken to a private room for almost an hour at the Boston Logan International Airport.
- brightsize 12y agoI wonder if this has any implications at all for the seizure and search of phones and other digital devices by border agents? I suspect the answer is "no" of course, since they're not exactly in the justice business like the police in theory are. But they they are (also in theory) subject to SCOTUS decisions AFAIK, and maybe this decision signals a new attitude towards digital device searches in general?
- Jacobs 12y agoWhy not just ban all warrantless searches outright?
- joering2 12y agouhm, so local sheriffs bought stingray equipment and spent tens of thousands of dollars on equipment they well know is illegal to use, and now with this decision they will just shut it down and stop using it? Okay... While this is "good news", its nothing more than that: a news. No change at all will happen. Nothing! Your local sheriff is breaking the law. So what? Are you gonna call law enforcement to arrest him? Good luck! Yes, eventually they may be punished by Congress taking away some of their founds. But I bet they will rather let go some officers, not maintain their cars and guns properly, than stop harassing your privacy. Who knows -- perhaps somewhere they will let a murder slip through cracks just to show how important that technology is to "keep you safe", just like government has been caught times and times again in false flags attacks. Am I wrong?
- Phlarp 12y agoThis ruling was not specific to the use of stingray devices, those are still legal to use if they have the proper warrant. What's illegal with stingrays is lying about where the information came from on the warrant or in a trail. No surprise lying to a court will get you in trouble. This ruling absolutely will have an impact on the relatively widespread use of those little memory dumping devices that cops love to use in routine arrests and even traffic stops in some states.
- joering2 12y agoJust exactly why you believe it will make any dent? With Holter behind steers, why would you think anyone will require any sort of legality or transparity from anyone that works for Government??
- rl3 12y agohttp://www.cnn.com/2014/06/25/justice/supreme-court-cell-phones/ http://www.cnn.com/2014/06/25/justice/supreme-court-cell-pho... Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure "full compliance" with the decision. "We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," Canale said.
- rdl 12y agoI love it when the legal process works as intended.
- vaadu 12y agoHow does this affect the TSA at the border when they want to inspect the contents of your laptop or cell phone?
- acd 12y agoDoes this ruling also affect warrant less laptop searches?
- renarenasaini 12y agomy co-worker's sister-in-law got paid $12019 the prior week. she gets paid on the laptop and bought a $391300 house. All she did was get fortunate and put to work the steps uncovered on this web site ,,,,,,,, ,,,,,,,, WWW.MAX43.COM
- mayneack 12y agoSo what happens to everyone that has been arrested and convicted based on this in the past? Are they suddenly able to appeal?
- pattisapu 12y agoWow--in some jurisdictions the whole process of getting a warrant is done remotely anyway: > Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).